Appeal from the Circuit Court of Winnebago County. No. 12-ED-2. Honorable J. Edward Prochaska, Judge, Presiding.
In an action arising from plaintiff water reclamation district's proposal to construct a sanitary sewer extension for a residential subdivision that would require a " trunk line" to be installed beneath defendant condominiums pursuant to a permanent easement and a temporary construction easement, the trial court, after dismissing plaintiff's first complaint for condemnation, properly denied defendant's motion to dismiss plaintiff's second condemnation action on grounds of res judicata and improper notice, and then denied defendant's traverse and motion to dismiss after a bench trial, since plaintiff's complaint set forth all of the elements necessary for its exercise of the right of condemnation and defendant failed to introduce evidence that plaintiff abused its discretion.
Richard B. Kirk, of Schirger Law Offices, LLC, of Rockford, for appellants.
Joshua G. Vincent and Thomas J. Lester, both of Hinshaw & Culbertson LLP, of Chicago, for appellee.
JUSTICE HUDSON, delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Zenoff concurred in the judgment and opinion.
[¶1] The instant dispute concerns a proposal by plaintiff, Rock River Water Reclamation District, to build a sanitary sewer extension (Oak Crest project) to a residential development known as the Oak Crest subdivision. In October 2010, plaintiff adopted an ordinance providing for construction of the Oak Crest project. Connecting the Oak Crest project to the existing sanitary sewer system would require installation of a " trunk line" running beneath property belonging to defendant The Sanctuary Condominiums of Rock Cut. As a result, plaintiff sought to obtain from defendant both a permanent easement and a temporary construction easement. In April 2011, after discussions to acquire the easements broke down, plaintiff filed in the circuit court of Winnebago County a complaint for condemnation. On defendant's
motion, the trial court dismissed plaintiff's complaint on the bases that the ordinance authorizing construction of the Oak Crest project failed to state that a taking of defendant's property was necessary and failed to describe with reasonable certainty the property sought to be taken.
[¶2] Thereafter, plaintiff enacted another ordinance in an effort to cure the deficiencies identified by the trial court. Plaintiff then offered defendant $2,700 for the easements, double their appraised value. Defendant rejected plaintiff's offer, and, in January 2012, plaintiff initiated a new condemnation action. Defendant unsuccessfully moved to dismiss the second condemnation action on the grounds of and improper notice. Defendant then filed a traverse and motion to dismiss, which the trial court denied following a bench trial. The court subsequently determined that $1,350 was just compensation for the easements. Defendant then filed a notice of appeal. On appeal, defendant raises three principal issues. First, defendant contends that the trial court erred in denying its motion to dismiss plaintiff's second condemnation action on the ground of . Second, defendant challenges the trial court order denying its traverse and motion to dismiss. Third, defendant argues that the trial court erred in refusing to compensate it for any damage that installation of the proposed trunk line would cause to its property. For the reasons set forth below, we affirm the judgment of the circuit court.
[¶3] I. BACKGROUND
[¶4] Plaintiff is an Illinois unit of local government that is organized under the Sanitary District Act of 1917 (Sanitary Act) (70 ILCS 2405/0.1 et seq. (West 2010)) and provides wastewater conveyance and treatment services to certain properties located in and around Rockford. On July 26, 2010, plaintiff's committee on local improvements (Committee) adopted a resolution to build the Oak Crest project and to levy a special assessment to pay for it (First Resolution). See 70 ILCS 2405/22a.5 (West 2010). The First Resolution set forth a legal description of the property to be served by the Oak Crest project. The First Resolution also called for a public hearing on the Oak Crest project and directed that notice of the hearing " shall be sent by mail to the person or entity shown by the County Collectors current warrant book to be the party in whose name the general real estate taxes were last assessed on each lot, block, tract or parcel of land fronting on the proposed improvement." See 70 ILCS 2405/22a.5 (West 2010).
[¶5] On August 23, 2010, the public hearing was held to allow comments and questions regarding the Oak Crest project. The Committee met immediately after the hearing and adopted another resolution (Second Resolution). See 70 ILCS 2405/22a.6 (West 2010). The Second Resolution noted that a public hearing had been held " on the question of the desirability of the proposed local improvement to be paid for by special assessment" and that " no sufficient objection was made to the proposed improvement." Accordingly, the Committee recommended " that the proposed improvement be made in accordance with an ordinance authorizing the same."
[¶6] On October 25, 2010, plaintiff's board of trustees adopted Ordinance No. 10/11-S-02 (2010 Ordinance) (Rock River Water Reclamation District Ordinance No. 10/11-S-02 (adopted Oct. 25, 2010)). See 70 ILCS 2405/22a.5 (West 2010). The 2010 Ordinance provided that " [a] local improvement *** to be paid for by special assessment shall be constructed in the Rock River Water Reclamation District
*** consisting of sanitary sewers benefiting and potentially serving" the properties legally described therein, which properties were designated collectively as the " Oak Crest Sanitary Sewer Area." Rock River Water Reclamation District Ordinance No. 10/11-S-02 (adopted Oct. 25, 2010). The 2010 Ordinance authorized a levy upon the property owners in said area to pay for the improvement and incorporated by reference a plat map of the Oak Crest project.
[¶7] To connect the Oak Crest project to the existing sanitary sewer system, plaintiff proposed running a " trunk line" beneath defendant's property, thereby requiring plaintiff to obtain a permanent easement and a temporary construction easement. Between January 17, 2011, and March 24, 2011, representatives for the parties met on at least three occasions to discuss the acquisition of the easements, but they were unable to reach an agreement. As a result, on April 7, 2011, plaintiff filed its first complaint for condemnation against defendant (2011 Complaint or first condemnation action). Citing section 15 of the Sanitary Act (70 ILCS 2405/15 (West 2010)), the 2011 Complaint provided that " [p]laintiff may acquire by condemnation, all real property, right of way in privilege, either within or without its corporate limits, which may be required for its corporate purposes." The 2011 Complaint alleged that to proceed with the Oak Crest project it was necessary to acquire a permanent easement and a temporary construction easement. Attached to the 2011 Complaint was an unexecuted easement describing the land to be taken and a plat map. Defendant moved to dismiss the 2011 Complaint on two grounds. First, defendant argued that the 2010 Ordinance failed to state that the Oak Crest project required the taking of defendant's property. Second, defendant argued that the plat map attached to the 2010 Ordinance failed to reasonably describe the portion of defendant's property to be taken.
[¶8] In a memorandum of decision and order entered on September 22, 2011, the trial court granted defendant's motion to dismiss the 2011 Complaint. The court reasoned as follows:
" Under the [Sanitary Act], in order to proceed with a sewer construction project, [plaintiff] must prepare and approve an ordinance describing the improvement. 70 ILCS 2405/22a.6. The statute requires that 'if the improvement requires the taking or damaging of property, the ordinance shall so state . . .' Id. Illinois caselaw has further held that whenever a proposed improvement will require that private property be taken or damaged, it is required that the enabling ordinance 'shall describe the property to be taken or damaged with reasonable certainty.' City of Kankakee vs. Dunn, 337 Ill. 391, 393, 169 N.E. 251 (1929).
In the present case, the Court finds that neither the [2010 Ordinance] nor the attached plat map state[s] that a taking of Defendant's property is necessary, nor do they describe the portion of [defendant's] property to be taken with reasonable certainty. The ordinance itself fails to mention the Defendant's property or the fact that the proposed improvement will require that easements be obtained by [plaintiff]. The Plaintiff *** argues that this information is provided by the plat map referred to by the  Ordinance. However, the plat map does not state that Defendant's property will be taken. Moreover, it is the Court's opinion that the plat map fails to reasonably describe the portion of [defendant's] property to be taken for several reasons. First, the map is not drawn to scale. Second, the map does not state the length, width or
total amount of the land to be taken. Third, the map does not state whether [defendant's] land is to be taken by easement, fee simple, or some other method. The map simply shows the path of the proposed off-site sewer as it progresses through [defendant's] property with dotted lines on each side of the sewer lines' path which is labeled 'project area'.
The Illinois Supreme Court has held that a line on a map is not sufficient to provide a reasonable description of the condemned property. City of Kankakee vs. Dunn, 337 Ill. at 395. The Court does not find that the inclusion of more lines cures the deficiency. The word 'easement' does not appear in the [2010 Ordinance] or on the map. There are no estimates regarding the amount of land to be taken. The plat map simply shows the scope of the project. The Court does not believe that it was ever intended to describe with reasonable certainty the amount of Defendant's land needed to be taken by [plaintiff]. While it is not improper to attach a map to an enabling ordinance, neither the [2010 Ordinance] nor the map contain[s] a statement that [plaintiff] requires the taking or damaging of Defendant's *** land in order to proceed with the Oak Crest Subdivision Sanitary Sewer Project. The [2010 Ordinance] is silent on the subject while the map simply shows a series of lines going through Defendant's property.
Statutes conferring and ordinances enabling the power of eminent domain must be strictly construed in order to protect the rights of property owners. Forest Preserve District of DuPage County vs. Miller, 339 Ill.App.3d 244, 254, 789 N.E.2d 916, 273 Ill.Dec. 742 (2d Dist. 2003). In the present case, the Court finds that the [2010 Ordinance] and attached map violate 70 ILCS 2405/22a.6 by failing to state that the project requires the taking of Defendant's land, and that the [2010 Ordinance] and map also fail to reasonably describe that portion of Defendant's land to be taken."
[¶9] Plaintiff did not appeal the trial court's ruling of September 22, 2011. Instead, plaintiff enacted Ordinance No. 11/12-M-08 (2011 Ordinance), titled " Oak Crest Sanitary Sewer Extension, Special Assessment No. 118 Ordinance Authorizing Condemnation Proceedings" (Rock River Water Reclamation District Ordinance No. 11/12-M-08 (approved Nov. 28, 2011)). The 2011 Ordinance incorporated a description of defendant's property by reference and provided that " an easement for construction of said sewer is required across and through [defendant's] property." Rock River Water Reclamation District Ordinance No. 11/12-M-08 (approved Nov. 28, 2011). Noting that plaintiff had made several unsuccessful attempts to negotiate with defendant for the easements, the 2011 Ordinance authorized plaintiff's attorney to obtain them by condemnation.
[¶10] In a letter dated December 6, 2011, plaintiff offered defendant $2,700 for the easements, double their value as set forth in an appraisal obtained by plaintiff in May 2011. Through its attorney, defendant rejected plaintiff's offer but advised that it would consider any other offer plaintiff wished to make. On January 17, 2012, plaintiff filed its second complaint for condemnation against defendant (2012 Complaint or second condemnation action). The 2012 Complaint alleged that, pursuant to section 15 of the Sanitary Act (70 ILCS 2405/15 (West 2010)), plaintiff " may acquire by condemnation all real property, right of way in privilege, either within or without its corporate limits, which may be required for its corporate purposes." The 2012 Complaint further alleged that to proceed with the Oak Crest project it was
necessary to acquire a permanent sanitary-sewer easement and a temporary construction easement. The 2012 Complaint stated that by virtue of the 2011 Ordinance plaintiff was authorized to exercise the right of eminent domain to acquire defendant's property for the Oak Crest project. Finally, the 2012 Complaint prayed for the court to provide just compensation to defendant for plaintiff's acquisition of defendant's property. Attached to the 2012 Complaint was an unexecuted easement describing the land to be taken, a plat of the easement, and a copy of the 2011 Ordinance.
[¶11] On February 17, 2012, defendant filed a motion to dismiss with prejudice the 2012 Complaint as barred by a prior judgment, pursuant to section 2-619(a)(4) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(4) (West 2010)). In a memorandum accompanying its motion, defendant argued that res judicata barred the 2012 Complaint because the 2011 Ordinance did not cure the defects of the 2010 Ordinance. According to defendant, " a resolution to take property does not fix a resolution that authorizes a public improvement but fails to state the need to take private property for that improvement." Stated differently, it was defendant's position that a declaration to take private property must be made in the same ordinance that authorizes the public purpose for which the property will be taken. Defendant posited that, in the absence of a single ordinance authorizing the Oak Crest project, indicating that the taking of defendant's property was necessary, and describing with reasonable certainty the land to be taken, the 2011 Ordinance " ha[d] no effect." Thus, defendant reasoned, the 2012 Complaint was not a new cause of action, because (1) the trial court already ruled that the 2010 Ordinance does not enable plaintiff to take defendant's property; (2) that ruling was a final judgment on the merits; and (3) there was an identity of parties.
[¶12] On June 27, 2012, the trial court denied defendant's motion to dismiss pursuant to section 2-619(a)(4) of the Code. The court noted that the doctrine of res judicata serves as an absolute bar to a subsequent action between the same parties or their privies on the same cause of action, provided that a final judgment on the merits was rendered by a court of competent jurisdiction. See City of Chicago v. Midland Smelting Co., 385 Ill.App.3d 945, 955, 896 N.E.2d 364, 324 Ill.Dec. 578 (2008). The court concluded, however, that not all of the elements of res judicata were present. The court explained:
" This Court finds that all of the conditions of res judicata have not been satisfied because while the identity of the parties or their privies is the same as the previous cause of action *** the ordinances involved in the new cause of action *** and the previous action are not identical, and thus the two cause of actions [ sic ] differ. Specifically, the [2010 Ordinance] was an Ordinance of the Rock River Water Reclamation District Providing for the Constr. of Sanitary Sewers in the Oak Crest Sanitary Sewer Area to be Paid for by Special Assessment No. 118, 10/11-S-02 (Oct. 25, 2010) and the [2011 Ordinance] is Rock River Water Reclamation Dist. Oak Crest Sanitary Sewer Extension, Special Assessment No. 118 Ordinance Authorizing Condemnation Proceedings, 11/12-M-08 (Nov. 28, 2011) ***. The [plaintiff's] new ordinance is applicable to the Defendant, and unlike the previous ordinance, this ordinance properly describes the land sought to be condemned by the [plaintiff] under its right of eminent domain granted by the Sanitary Act pursuant to the Eminent Domain Act (735 ILCS 30/1-1-1 et seq.).
70 ILCS 2405/8; 70 ILCS 2405/15. The [plaintiff's] curing of the defects of the original ordinance precludes the dismissal of the current condemnation action under the doctrine of res judicata because the two ordinances are not identical and are therefore separate issues."
[¶13] The trial court also addressed defendant's contention, raised for the first time at the hearing on its motion to dismiss, that it did not receive proper notice of the " special assessment resolution and the resulting ordinance which preceded [plaintiff's] condemnation action." The court held that defendant could not challenge the special assessment. The court explained that the condemnation case and the proceedings involving the special assessment were separate matters governed by different provisions of the Sanitary Act. The court held that sections 22a.5 and 22a.6 of the Sanitary Act (70 ILCS 2405/22a.5, 22a.6 (West 2010)), the notice provisions on which defendant relied, govern special assessments and " refer to notice requested to be given to persons who are subject to a special assessment." Because defendant was not subject to a special assessment, it was not entitled to mailed notice of the special assessment proceedings. Finally, the court held that, to the extent that its " prior order" referenced sections 22a.5 and 22a.6, those citations were made in error. Thereafter, defendant moved for reconsideration of the denial of its motion to dismiss. Defendant also moved to have questions related to the res judicata and improper-notice issues certified for interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). The trial court denied both the motion to reconsider and the motion to certify.
[¶14] On December 27, 2012, defendant filed a traverse and motion to dismiss. Defendant argued that plaintiff failed to properly invoke its power of eminent domain before attempting to take defendant's property. Defendant further argued that the Oak Crest project was not necessary, the amount of property sought to be taken was excessive, and plaintiff did not make a good-faith attempt to reach an agreement with defendant on just compensation. Plaintiff moved to dismiss the traverse or, alternatively, for summary judgment on it. Subsequently, the trial court certified for interlocutory appeal under Rule 308 the questions related to defendant's res judicata and improper-notice arguments. This court denied defendant's application for leave to appeal. See Rock River Water Reclamation District v. Sanctuary Condominiums of Rock Cut, 2013 IL App. (2d) 130396-U.
[¶15] On June 17, 2013, a bench trial was held on defendant's traverse and motion. At the hearing, plaintiff called three witnesses: Frank Hood, Dana Carroll, and Debbie Lyons. Hood testified that he is a resident of the Oak Crest subdivision and has been the president of the subdivision's homeowner's association for the past 13 years. Hood testified that none of the homes in the Oak Crest subdivision have sanitary sewer service. Instead, they use septic systems. Hood testified that some homeowners experience continual problems with the septic systems. He noted, for instance, that, as a result of clay soil in the area, some residents are required to frequently replace their septic tanks. According to Hood, it costs $10,000 " every couple of years" to have the septic systems fixed. Hood testified that other methods to dispose of sanitary waste were explored, such as pump systems. However, the pumps freeze in the winter, ...